When it comes to Brexit, no one seems to know what tomorrow will bring - particularly in the event of no deal scenario. With Boris Johnson as the Prime Minister, it’s never a dull day in the world of politics and as we get closer to 31st October 2019, there should be plenty more twists and turns.
At the time of writing, we await the UK Supreme Court’s determination on whether advice provided by the Prime Minister to the Queen to prorogue Parliament was lawful.
What effect will their ruling have on Brexit? Will we leave the EU on 31st October 2019 and if we do – with a deal or without one? Will we get a new deal as the current government insists is a possibility? Will the British public get a second chance to have their say in a second referendum or a new general election? Or will Article 50 be revoked? With the UK Parliament currently prorogued to 14th October 2019, is the possibility of a no deal scenario increasing? The possibilities, it seems, are endless
What we know
Legally, there are some matters which have been clarified. The EEA (made up of EU countries and also Norway, Liechtenstein and Iceland) and Swiss nationals and their family members, who can prove their residence in the UK by 31st October 2019 (or whenever we leave the EU), are eligible to apply for status under the EU Settlement Scheme. Should the UK leave the EU with a deal, then the deadline for applying under this scheme is 30th June 2021; however in the event of no-deal, applicants must apply for status under this scheme by 31st December 2020.
EEA nationals, Swiss nationals and their family members who can prove at least five years’ residence in the UK will be granted “settled” status; whereas “pre-settled” status under this scheme is granted to those who can prove residence in the UK for less than five years. A grant in either case will allow the individual to continue working in the UK, use the NHS, enrol in education or continue studies, access public funds such as benefits and pensions where otherwise eligible and travel in and out of the UK.
“Settled” status under the EU Settlement arrangements allows the individual to live in the UK permanently and subject to the requirements for naturalisation as a British citizen, the holder of settled status may be eligible for British nationality. “Pre-settled” status will allow the individual to reside in the UK lawfully for a further five years with the holder of “Pre-settled” status eligible to apply for “settled” status once the individual has obtained 5 years’ continuous residence. The difference is particularly important given that the UK Government has announced that there will be a new Immigration system from 1st January 2021 and those without the correct leave to remain will be subject to what has become known as the hostile environment.
What happens to EEA and Swiss citizens who move to the UK after Brexit?
With a no-deal Brexit looking increasingly more likely, it was perhaps surprising to learn of the new Home Secretary’s plans to end free movement in the event of no-deal on 31st October 2019. Thankfully, the UK government has now reversed its decision and will revert to its previous policy of giving new EU migrants who enter the UK post Brexit in a no-deal scenario temporary leave to remain.
EEA and Swiss nationals will be free to enter the UK after 31st October 2019 and remain in the UK as they currently do until 31st December 2020. If they wish to reside in the UK beyond this date, in the event of no-deal, they will need to have obtained European temporary leave to remain (Euro TLR) otherwise, on 1st January 2021, they too will be subject to the hostile environment – with the UK government confirming “…they will be here unlawfully and will be liable to enforcement action, detention and removal as an immigration offender”.
The Euro TLR is a temporary immigration route available for EU, EEA and Swiss nationals and their “close” family members after the UK leaves the EU without a deal. The successful applicant will be granted 3 years’ temporary immigration status. As with the grant under the EU settlement scheme, the successful applicant under this new scheme would enjoy the same rights; however, this does not lead to settlement in itself. The holder of Euro LTR would need to apply for a new visa before their 3 years’ temporary immigration status expires.
For employers, it is perhaps good news that there are measures – albeit temporary in the case of Euro TLR – in place to continue employing EEA and Swiss Nationals and their family members without having to worry about civil penalties; thus, maintaining business continuity. Given that the UK Government will find it difficult to distinguish which EEA and Swiss citizens are already resident by 31st October 2019 and those who arrive after this date, it is recommended that all EEA and Swiss Nationals and their family members who can provide evidence of residence in the UK before Brexit Day, apply under the EU Settlement Scheme. Regardless of whether we leave the EU with a deal or no deal, or whether we have Brexit at all, the effects will surely ripple on for the foreseeable future.
Liam McMonagle is a specialist Intellectual Property, Media and Technology solicitor. We are always delighted to talk without obligation about whether we might meet your needs. Call Liam on 0131 225 8705 or email firstname.lastname@example.org